Dive Brief:
- The National Association of Wholesaler-Distributors is taking a new step to stop Oregon’s extended producer responsibility for packaging program.
- The association on Tuesday filed a motion for a preliminary injunction, asking the U.S. District Court for the District of Oregon to suspend enforcement of the Plastic Pollution and Recycling Modernization Act.
- This follows a lack of movement since late July when NAW first filed its lawsuit challenging the law. NAW’s original complaint alleged the EPR program is “unconstitutional,” citing nondelegation doctrine, federal dormant commerce clause, federal unconstitutional conditions doctrine and federal and state due process.
Dive Insight:
This step escalates NAW’s ongoing case. A judge had previously given defendants, including the Oregon Environmental Commission and Oregon Department of Environmental Quality, multiple extensions to respond to NAW’s complaint. Oregon DEQ on Tuesday reiterated it does not comment on open litigation.
Karen Harned, NAW’s director of litigation and legal policy, said the group hoped for a resolution sooner without having to seek a preliminary injunction. “We didn't object to initial extensions. But then the extensions to even just respond continued to go on,” Harned said.
With 2026 fee assessments around the corner, “we can't wait any longer,” she said. NAW hopes to avoid producers having to pay another round of fees.
“We didn't take this lightly, but this is existential to the distribution industry,” she said.
All the while, Oregon’s EPR program has progressed. Producers were recently invoiced for their first round of fees. NAW claims those fees in some cases exceeded product margins in the state, particularly among small and mid-sized distributors.
Harned said that if EPR programs are fundamentally trying to reduce packaging and encourage more recyclable materials, “then you're going after the wrong people, because the distributors do not have the ability, in most if not all cases, to really make a meaningful difference there. That's on the manufacturer.”
Harned said NAW is still considering legal action in other states with packaging EPR programs but had no further updates.
